Bradley Manning guilty on multiple counts of violating Espionage Act — but not of aiding the enemy

posted at 1:41 pm on July 30, 2013 by Allahpundit

Fox News says he’s guilty of at least 15 lesser counts as I write this, but the exact number is unclear. Per the AP, most of the lesser offenses carry penalties of up to 10 years in prison so he’s likely going away for a long time. Aiding the enemy was the spotlight charge, though, because of the novel legal question it presented: Can you aid the enemy by publishing sensitive info for all the world to see rather than handing it to them directly?

Legal experts said an aiding-the-enemy conviction could set a precedent because Manning did not directly give the classified material to al Qaeda, but to the Wikileaks website, which then published many of them.

“Most of the aiding-the-enemy charges historically have had to do with POWs who gave information to the Japanese during World War II, or to Chinese communists during Korea, or during the Vietnam War,” Duke law school professor and former Air Force judge advocate Scott Silliman told The Associated Press.

Air Force Reserve Lt. Col. David J.R. Frakt, a visiting professor of law at the University of Pittsburgh, said a conviction on the most serious charge, if upheld on appeal, “would essentially create a new way of aiding the enemy in a very indirect fashion, even an unintended fashion.”…

Some of the classified documents leaked by Manning ended up in the hands of Osama bin Laden and were recovered in the raid on his compound by U.S. Navy Seals in Abbottabad, Pakistan.

Evidently the judge decided that yes, intent is an element of aiding the enemy, and no, the prosecution didn’t prove that Manning intended to do so in leaking info. Had she found that intent is irrelevant, presumably any leak, for whatever purpose, could be punishable with death if it could be shown that the enemy benefited from it in some way. (The prosecution sought life in prison, not death, for Manning.) The judge asked prosecutors during the trial whether they would have sought the same charges if he had leaked to the Times rather than to Wikileaks; they said yes, which may have been the honest answer but probably doomed their case. A court’s not going to declare lightly that servicemen should risk capital punishment if/when they whisper something to a reporter. Especially in this case: Why set a precedent like that when you can give Manning a de facto life sentence, or something approaching that, by convicting him on multiple counts of violating the Espionage Act instead?

Oddly enough, I think both Obama and Edward Snowden will be happy with the verdict on aiding the enemy. If the judge had ruled the other way, it would have thrown a spotlight on O’s heavy-handedness in sniffing out and punishing leakers. Better to stick with the lesser charges. As for Snowden, although he’d face a civilian court rather than a military tribunal, he surely doesn’t want any precedents being set that mass leaks that benefit the enemy, however unintentionally, are grounds for the stiffest possible sentences. Stand by for updates.

Update: It was Manning’s example, notes the Atlantic, that led Snowden to go the route he went:

Snowden’s leaks, as he himself noted, were more discriminate than Manning’s. While Manning quickly gave up on involving traditional media entities, Snowden was patient, waiting months for The Guardian’s Glenn Greenwald to respond favorably. Manning’s involvement of WikiLeaks necessitated arguments about the group’s journalistic value; Snowden would face no such critique. Most significantly, Snowden saw the treatment and arrest of Manning and learned two things. First, that avoiding capture made sense and, second, that Manning’s treatment could be used as a political point. Attorney General Eric Holder’s remarkable letter to Russia last week, articulating that Snowden would not be tortured, was almost entirely the result of Snowden and his advocates using Manning as an example.

Update: CNN has a nice backgrounder on how Manning linked up with Wikileaks and how he was found out. Assange spoke to CNN yesterday about the case and was, as you might imagine, very Assange-ish indeed:

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Aiding the enemy was always going to be a tough charge. With the rest of the charges, little shithead should be spending a very large portion of the rest of his miserable existence in jail… where he can now sue for free sex reassignment.

A big blow to the Obama administration, which has prosecuted twice as many people under such laws than all previous administrations…COMBINED.

Basically, what the court found was that he was not responsible for what wikileaks did with the information…and, there is precedent for this. If wikileaks is considered a journalistic enterprise – and for those that think otherwise, be careful. We’ve already seen statists like Lindsey Graham and Pete King wonder if bloggers should be protected under the First Amendment (the Founders would be repulsed by such), then he didn’t aid the enemy.

As the Supreme Court has ruled:

‘The Bill of Rights changed the original Constitution into a new charter under which no branch of government could abridge the people’s freedoms of press, speech, religion, and assembly. Yet the Solicitor General argues and some members of the Court appear to agree that the general powers of the Government adopted in the original Constitution should be interpreted to limit and restrict the specific and emphatic guarantees of the Bill of Rights adopted later. I can imagine no greater perversion of history. Madison and the other Framers of the First Amendment, able men that they were, wrote in language they earnestly believed could never be misunderstood: ‘Congress shall make no law . . . abridging the freedom . . . of the press. . .’

Both the history and language of the First Amendment support the view that the press must be left free to publish news, whatever the source, without censorship, injunctions, or prior restraints…In the First Amendment, the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors.

The Government’s power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government. And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people.

In other words, we are asked to hold that, despite the First Amendment’s emphatic command, the Executive Branch, the Congress, and the Judiciary can make laws enjoining publication of current news and abridging freedom of the press in the name of ‘national security.’ The Government does not even attempt to rely on any act of Congress. Instead, it makes the bold and dangerously far-reaching contention that the courts should take it upon themselves to ‘make’ a law abridging freedom of the press in the name of equity, presidential power and national security, even when the representatives of the people in Congress have adhered to the command of the First Amendment and refused to make such a law.

The Founding Fathers gave the free press the protection it must have [to] bare the secrets of government and inform the people.’

– Justice Hugo Black, writing for the majority, in New York Times Co. v United States, 403 U.S. 713 (1971)

Under the court’s verdict today and the Court’s holding in New York Times (the Pentagon Papers case), Bradley Manning is not a ‘traitor.’ Obviously, people can call him what they want, but the Obama administration cannot. It lost the biggest part of this case.

Now that the court martial is over. Is somebody looking out for the mental well-being of the idiots that have been camped out at Fort Meade for weeks. These people were not the most mentally stable in the first place and the fact that their gay hero isn’t walking on these charges must be devistating.

And as a follow-up where does this band of professional protesters go from here? If they nab Snowden that would be a no-brainer but these people are about to become a mob without a place to protest.

The gay traitor will go to jail for a long time and that is a good thing. Even if he had objections to American policy, a homosexual PFC did not have the right to release 700K documents to the world. Or do you disagree with that too.

BTW, in case you hadn’t guessed, I think treason should have been on the table.

These people were not the most mentally stable in the first place and the fact that their gay hero isn’t walking on these charges must be devistating.

Happy Nomad on July 30, 2013 at 1:58 PM

He had already pleaded guilty to 10 charges. He was already facing 20 years. If they thought that he would be walking out of prison, then they do need mental evaluations. Neither Bradley Manning nor his defence team thought that.

Judge Lind can make the sentences run concurrent, if she so desires, which could top out his sentence at far less than the many decades the government wants. She has already given him 4 months for time-served the ‘illegal pretrial punishment’ (read: torture and/or cruel and unusual punishment) during the 9 months he was held at Quantico.

It is an interesting question. Is Assange an enemy of the state? Is Wikileaks a journalistic outlet or something else?

I disagree with the idea that the gay traitor would have had to lick a stamp and mail this stuff to Al Qaeda for it to be considered aiding the enemy. In fact I think he did. The problem is that it wasn’t to one specific enemy but to multiple ememies through Wikileaks. Everytime in coming years when you see that drone footage as part of the justification for some terrorist act against Americans, please reconsider the idea that the rat-bastard gay traitor is innocent of aiding the enemy.

Why are you pointing out his sexuality? What does that have to do with anything?

MadisonConservative on July 30, 2013 at 2:05 PM

Not that it has to do anything with the crimes he committed, or this trial, but, Manning’s sexuality is one of the main reasons that he has such strong support on the left – they are willing to ignore his crimes because he’s gay – he has become a gay hero/icon to liberals.

Why are you pointing out his sexuality? What does that have to do with anything?

MadisonConservative on July 30, 2013 at 2:05 PM

Because for years before the repeal of DADT we constantly lectured about all the super-smart people (especially linguists and intel folks) who were denied from serving their country because of their sexual orientation. We were told that these were super-patriots who were unjustly excluded from military service.

Well, sexual orientation played a part in the leaking (distraught over a breakup with a boyfriend) and a refutation of the idea that gays are above committing treason by dint of being such good Americans.

Not that it has to do anything with the crimes he committed, or this trial, but, Manning’s sexuality is one of the main reasons that he has such strong support on the left – they are willing to ignore his crimes because he’s gay – he has become a gay hero/icon to liberals.

Pork-Chop on July 30, 2013 at 2:09 PM

Of course. They define themselves by their sexuality – a concept that I thought conservatives rejected. If we’re going along with their demand for labels…does that mean we’ve surrendered on that cultural front?

Defending Julian Assange- how nice of you, counselor. Every American serviceman that operated in the Mid-East after intel sources were revealed -such as myself- thank you.

/gfy

M240H on July 30, 2013 at 2:11 PM

I didn’t defend Julian Assange. I cited the caselaw on the subject and spoke about who the Founding Fathers believed deserved ‘freedom of the press.’ Hint: It wasn’t just established newspapers.

You will also notice that I said that, before you automatically dismiss wikileaks as a journalistic enterprise, remember that we’ve had statists recently that have wondered whether bloggers deserve First Amendment protections.

I am no supporter of Julian Assange, who I believe is a first-rate creep, or wikileaks. I am a supporter of the Constitution and the law.

Maybe, you can tell me why I should rush to condemn those that you hate so blithely when this administration has already argued that James Rosen was a flight risk and possible violator of the Espionage Act of 1918.

No, luv, I am not going to err on the side of the government.

And, while I thank you for your service, you can GO F*CK YOURSELF on everything else, if that’s the way you want it.

Not that it has to do anything with the crimes he committed, or this trial, but, Manning’s sexuality is one of the main reasons that he has such strong support on the left – they are willing to ignore his crimes because he’s gay – he has become a gay hero/icon to liberals.

Pork-Chop on July 30, 2013 at 2:09 PM

Didn’t his being irritated with something to do with his sexuality compel him to do this in the first place?

There has long been a reluctance to push for charges of treason, especially among the Left. The Rosenbergs were never charged with it, and neither were Jane Fonda or those who released the Pentagon Papers. Absent a declared war, it seems difficult for the charge of treason to stick.

You did “defend” Assange. To state that you merely cited relevant case law is just the weasel parsing of an attorney that wants it both ways.

Assange is not only no James Rosen (more weasel work on your part to pair Assange with a minor hero on the right) he is no “blogger”. He is the publisher of documents that governments’ would prefer not to have exposed with the declared intent of causing damage.

I suppose you are just an exemplar of the sad reality that one cannot be a human in pursuit of honor and a lawyer at the same time.

Over time, you really begin to see those who line up with the State adopt their thuggish attitudes.

MadisonConservative on July 30, 2013 at 2:20 PM

Indeed. Amazing how some want the government to be able to decide who is and who is not entitled to First Amendment protections. I don’t like wikileaks, but I recognise the fact that, by allowing the government to claim it is not a journalistic endeavour, the door opens to hold that others aren’t either.

Is my blog a journalistic endeavour? I’m not paid by anyone for the work that I do, but I consider my speech and work to be protected by the First Amendment. If I were given documents proving that the NSA was doing everything that it denied and published them, should I be prosecuted or does the public have a right to know that their government is lying to them and infringing on their rights?

Sadly, it would appear the answer for some is ‘No, you are not engaged in journalistic activities…and you are a traitor because you exposed the government.’

What is more important…not nailing Manning (in the jurisprudence sense, not the Manning sense) or making a sham of the UCMJ?

coldwarrior on July 30, 2013 at 2:21 PM

I will say two things.

First, Even the “Free Bradley” crowd can say that the procedings were biased. The judge did her job well.

Secondly, I do think the a sham was made of the UCMJ. Are we really to believe that Manning was the only person that should have faced a court martial? I would suggest that Manning’s supervisors who allowed such lax procedures in a SCIF should have been brought up on charges as well. There are indivudals who were derelict in their responsibilities and Manning mangaged to steal 700K documents as a result. Where are their trials?

Seriously, I disagree with this decision. This wasn’t whistle-blower stuff. This was “I hate this country bc I am a queen serving in the military.” If he were actually revealing real improprieties and took them to the American press or leaked something to a friend for what he thought was a confidential convo but ended up not so confidential, I’d say its not treason then. Just because you leak something to the world does not absolve you of helping our enemies – the people who would find it most useful, is treason.

I suppose you are just an exemplar of the sad reality that one cannot be a human in pursuit of honor and a lawyer at the same time.

M240H on July 30, 2013 at 2:29 PM

That’s a pathetic and ignorant worldview. Do you hold that same attitude towards every lawyer that bails your ass out? How about George Zimmerman’s lawyers? How about the lawyers at FIRE that defend college students against draconian college speech codes? How about justices like Antonin Scalia and Clarence Thomas?

We’ve made the military a grand experiment in social engineering, but is anyone making observations and taking notes?

Manning was pathetic. When the Army really had basic training, it is unlike the little worm would have survived the process. What was his motivation? People didn’t respect him and folks with his inclinations. One of the overwhelming arguments against overt homosexuals in the military was they’d hurt unit cohesion. Well, he has hurt cohesion at a higher level than that!

Resist We Much, I consider it divine providence that caused all those great leaders to be together at that moment in time before,during and after the founding of this once great nation (aside from Lincoln, obviously), I only wonder where are OUR Madison, Paine, Washington, Adam? I don’t have much hope for today’s “leaders” frankly. BTW, you told the commentor to go F himself in retort, fight like a girl dangit ; ) *winks and laughs.

Each person that you cite, even if they are personally honorable, are professionally concerned with manipulations of the labyrinthine layers of law, not the discovery of universally perceptible truth.

They may be engaged in those manipulations with the intent of doing ‘good’, but, to my mind that is rare, and generally quixotic. And their arguments, whether personal or professional, are almost always clouded by a desire to simply win, not learn.

They may be engaged in those manipulations with the intent of doing ‘good’, but, to my mind that is rare, and generally quixotic. And their arguments, whether personal or professional, are almost always clouded by a desire to simply win, not learn.

M240H on July 30, 2013 at 3:08 PM

In other words, it doesn’t matter how many people’s lives or rights are protected, or whether true justice is served. Once you’re a lawyer, everything you do is s**t because M240H says so.

With that in mind, if you’re ever forced to defend yourself in a legal situation, I hope you’re left with nothing but the public defender. After all, all lawyers are just trying to win, so it won’t make a difference.

And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people.

Resist We Much on July 30, 2013 at 1:51 PM

Very interesting indeed. The media wants all of the rights, privileges and protections under the 1st amendment yet it has become obvious since Obummer threw his hat in the ring for the presidency the MSM has abdicated the above state responsibility to the people in order to further their socialist/progressive ideology/agenda.

Seems like this is where our nation is at now, people scream at the top of their lungs for their “rights” yet very few of them want the responsibilities that go along with having such rights.

When one looks back on when Obummer came on the scene and the MSM purposely not vetting Obummer all the way to the 2008 election, the cover the MSM has provided Obummer in the 2012 election and during the last 5 years it begs the question: if it’s paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people then which is more guilty of treason against our republic; Manning, Snowden, or the MSM?

It’s no secret the MSM has been in the tank for Obummer since the beginning, most of us knew that back in 2007! Now the MSM doesn’t even try to hide their bias and support for Obummer and because of their (the MSM) abdication of their MOST important responsibility under the 1st amendment (as previously stated) our republic is paying the price and may never fully recover…that my fellow patriots is the very definition of being a traitor…the MSM has made Manning and Snowden look like amateurs when it comes to being traitors!

The MSM have obviously sold out America and are guilty of treason in the highest!

if it’s paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people then which is more guilty of treason against our republic; Manning, Snowden, or the MSM?

Evidently the judge decided that yes, intent is an element of aiding the enemy, and no, the prosecution didn’t prove that Manning intended to do so in leaking info.

Interesting parsing – basically, since the judge can’t read the mind of Manning re: intent, and Manning testified that he didn’t ‘intend’ the enemy to gain access to this information – there was no ‘intent’.

Yet, if the information was intended to be released en masse and publicly – how can someone not know or imagine that enemies of this country would access the information in order to damage the United States and its interests?

Assange didn’t ‘intend’ to rape those women…
Assange / Wikileaks didn’t ‘intend’ to damage the US releasing all of that data (but was bloody happy that the results of the release did damage the US and its military actions in Afghanistan)…

This seems far too typical of the political correctness and infinite spin / parsing that also allowed Major Nidal Hassan to repeatedly get promoted and avoid punishment for his actions in violation of his oath in putting Islam before the US / US Constitution – not to mention the mindless idiots in the Admin and Pentagon that call Hassan’s act of terrorism ‘workplace violence’.

Just as in this case, despite Hassan’s words and deeds, since there was no ‘intent’ to be a jihadi terrorist, it wasn’t terrorism.

Intent be damned – if the info helped the enemy, the he aided and abetted the enemy. Intent be damned – if Hassan shot nearly 50 people in an effort to ‘protect’ Islam, then he is a jihadi terrorist.

Yet, if the information was intended to be released en masse and publicly – how can someone not know or imagine that enemies of this country would access the information in order to damage the United States and its interests?

It can be argued that the release of the Pentagon Papers certainly aided the Viet Cong with their propaganda efforts, at the very least, but the American people also learned the extent to which their government was lying to them. Should Americans have been kept in the dark?

As Justice Potter Stewart wrote in his concurrence in New York Times:

‘In absence of governmental checks and balances, the only effective restraint upon executive policy and power may lie in an enlightened citizenry – in an informed and critical public opinion which alone can here protect the values of democratic government.’

If one is legitimately a whistleblower, there are responsible ways to raise one’s concerns and issues… using an organization like Wikileaks is not one of them.

That also goes for Ellsberg and his complaints over the LBJ Administration’s actions. (In that case, if Ellsberg left it with Sen. Gravel – and his subsequent entering of the papers into the Senate public record – he would avoided crossing the line in my point of view. But by first going to the NYT and going that route to publicize the report did cross the line.)

As a member of the armed services, something Ellsberg was not, Manning had a number of steps he could have taken well short of downloading classified information onto USB drives and handing them to an organization like Wikileaks knowing that organization was hostile to both the actions and policies of the US.

Bottom line – I don’t subscribe to the ‘ends justifies the means’ excuse.

According to e-mails from MDOJ obtained by Media Trackers Montana, Montana AP reporter Matt Gouras formally requested the information on March 18.

“We’d like all public information included on each permit holder, including, but not limited to: last name, first name, middle, street address, city, employer, age or DOB, driver’s license number, date of application,” Gouras wrote in his request.

Media Trackers Montana reached out to Gouras, who said he “could not speak for the AP.” Gouras directed any inquiries to the head of the Montana Associated Press, Matt Volz, who, in-turn, directed Media Trackers to regional bureau chief Jim Clarke.
~

Both sections of the UCMJ section 104 “Aiding the Enemy” imply that intent to provide the enemy with intelligence must be present.

unclesmrgol on July 31, 2013 at 12:49 AM

If you provide it to the world, the enemy is included, de facto.

If Manning did not intend for the enemy to get it, he would not have released it.

Ergo, he clearly intended for them to get it, along with everyone else.

Because everyone else is included does not exclude the enemy.

The judges are playing with words and denying reality and show themselves to be parsing fools who have now encouraged more betrayals of classified information into the hands of the enemy by reckless service members who have sworn not to do such a thing.

There are channels for complaints in the military and government oversight agencies.

By failing to follow the legal process, Manning betrayed his oath, and became a traitor.

If these channels had failed him, he could then have released the material to some media resource more responsible than the freelance anarchist spy organ run by Assange (and his backers, whoever they might be… whether China, Russia, Iran, or a combo of cynical manipulators) like The Christian Science Monitor or even the New York Times.

The release of any classified information directly to the press (or any other unauthorized recipient) is a crime.

To repeat myself, Manning, as a member of the Armed Forces, had numerous legal processes he could have followed to report what he believed was illegal conduct without releasing classified information any individual or organization unauthorized to receive classified information (press or not). This includes Wikileaks which is openly hostile to the policies and actions of the United States. I make no judgment as to if Wikileaks is part of the ‘press’ or not. That is immaterial. Wikileaks is not an entity legally entitled to US classified information.

Bradley Manning chose not to follow the steps available to himself to be a legal whistleblower, therefore he broke the law and his oath of service.

Resist We Much on July 30, 2013 at 4:53 PM

Once again, ‘the end justifies the means’ is not an acceptable, viable, or cogent excuse for one’s actions. There were and are means to be a ‘whistleblower’ that could have been followed by both Ellsberg and Manning that would not violate the law.

‘What if’s’, are little more than efforts to push ‘the ends justifies the means’ as a cogent and valid ‘fact’.

He should be turned over to the parents/families of the Afganis that he leaked as US informants. The Taliban has probably taken care of business by now, and our troops’ lives are even more in harm’s way because of his actions.

He is a traitor and coward and should be sentenced to death. To compare him to POW’s being tortured to divulge information is absurd.